Over the past eleven months, COVID-19 has significantly impacted all aspects of civil litigation. There has been a rapid shift from traditional face-to-face proceedings to virtual proceedings. Two recent cases demonstrate how BC courts have balanced the principles of justice with the need to utilize technology to ensure that litigation can proceed safely and effectively during this challenging time.
In the first case, Kasatani v Matsubara, 2020 BCSC 1960, the BC Supreme Court considered a party’s application to have an essential witness testify at trial by way of video conferencing. In light of travel restrictions, the witness was prohibited from travelling from Japan to Vancouver for trial. The court held the witness could testify by video, stating there is now an increase in the receipt of video evidence in civil litigation as the necessary technology has improved and become commonplace and that courts have become accustomed to assessing the credibility and reliability of evidence given by a witness seen only on a video screen.
The court said any early concerns with video evidence have now been allayed, at least to some extent, by experience.
In a second recent decision, Winchester v Polygon, 2020 BCSC 999, the BC Supreme Court considered how to proceed where a representative for discovery was located in Montreal, while both counsel were located in Vancouver. The examining party sought an order permitting an in-person discovery in Montreal, while the defending party sought an order that both counsel proceed from Vancouver. The court held that in the circumstances, compelling the examining counsel to travel to Montreal to examine in person was “an unnecessary and unwarranted imposition on the participants in the examination for discovery.” The court relied upon the now-widespread recognition that “the technology exists through court reporting services in Vancouver to conduct remote examinations for discovery of a person located in Montreal.” Ultimately, the court concluded that video examination was more efficient, and should be preferred.
At this time, there is no certainty with respect to when life and the courts will return to “normal”. When regular operations resume, it seems likely that litigation will be forever changed by the pandemic, at least in the procedural sense. Much of the technology that has modernized the litigation process will likely be here to stay.